Authored by Mokshith Bhyri, a fourth-year law student at NALSAR, Hyderabad
In a recent ruling in Rakshika Raj v. State of Tamil Nadu, the Madras High Court quashed the Tamil Nadu government’s G.O which provided 1% SEBC reservations to Transgenders in the State of Tamil Nadu under the Most Backward Classes (MBC) category. While the High Court scraps this vertical reservation to Transgenders, the Court allowed for a similar 1% horizontal reservation to the said community, following the similarly prevalent practise in Karnataka. Therefore, this judgment has serious repercussions surrounding the debate between Vertical and Horizontal reservations and the larger question of whether gender minorities can be conferred vertical reservation under Other Backward Classes (OBC) status, citing their social backwardness. It was the landmark ruling of the Supreme Court in NALSA v. Union of India that opened up such a possibility. It is argued in this article that the NALSA judgment blurs the line of distinction between horizontal and vertical reservation, which leads to further complexities. The Madras High Court, in this recent order, adopts a pragmatic interpretation of the NALSA judgment by providing a balanced and justified ruling in the interest of Transgenders as well as recognising the distinction between horizontal and vertical reservation.
Reservations to Gender-Minorities: Horizontal-Vertical Divide
Reservations under the Indian Constitution are contained under the Equality Code—Articles 14 to 16 in Part III. On a broader note, while SC and ST reservations are premised on inter-generational caste-based prejudices, OBC reservations, as the name itself suggests, are based on a community's “backwardness” and being “inadequately represented,” not just caste-based discrimination. By way of the 93rd Amendment to the Constitution, 27% of OBC reservations were constitutionally stipulated in the landmark Indra Sawhney v. Union of India, but leaving the phrase “backward classes” open-ended under Articles 15(4) and 16(4) ensured that such reservations could be provided to any community which is “backward” and/or “inadequately represented”. Taking this to an advantage, the Apex Court, in the landmark National Legal Services Authority (NALSA) v. Union of India ((2014) 5 SCC 438), expanded the scope of Articles 15(4) and 16(4) of the Indian Constitution to hold that transgenders are legally entitled and eligible to get the benefits of Socially and Educationally Backward Classes (SEBC is synonymously used for OBCs- in fact a subcategory of OBC). The Union and the State Governments were directed to extend “all kinds of reservations” in cases of admission to educational institutions and for public appointments to the third-gendered [Para 129(3)]. Based on this guideline is what prompted numerous states, starting with Karnataka, to provide 1% reservations to transgenders. This expansive notion of Article 15(4) and 16(4) was further solidified in the Jat reservations judgment by holding that “new yardsticks and methods have to be continuously evolved, moving away from a caste-centric definition of backwardness”.
While this broader interpretation of the Apex Court might, on the face of it, seem to be transformative by foresight for the upliftment of the third gender, on an interpretive level, such an open-ended phrase— “all kinds of reservations”—blurs the line of distinction between horizontal reservations and vertical reservations. While Vertical reservations refer to the reservation for SC, ST and OBCs, where each of these groups has its own “separate” reservation under Article 16(A), Horizontal reservation includes providing equal opportunities to other special beneficiary categories such as women, persons with disabilities, veterans, including the transgender community. As the phrase itself depicts, these horizontal reservations cut across vertical categories based on the specified quota allotted to them. An interplay of these two versions of reservations had emerged in multiple instances before the Courts, initially in Rajesh Kumar Daria vs Rajasthan Public Service Commission, where the Supreme Court clarified the position that “where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of ‘Scheduled Castes-Women’. If the number of women in such a list is equal to or more than the number of special reservation quotas, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall will the requisite number of scheduled caste women be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes.”
This position was re-iterated in Saurav Yadav v. State of Uttar Pradesh, settling the premise that if a person belonging to an intersection of the vertical-horizontal reserved category had secured higher enough to qualify without the vertical reservation, that person would be counted as qualifying without the vertical reservation and cannot be excluded from the horizontal quota in the general category. A perusal of these judgments shows that the horizontal-vertical intersection is couched with mathematical technicality, on the one hand, whose interpretation, on the other hand, requires mindful and meaningful interpretation so that no individual in this intersection is left behind. The NALSA judgment, it is most respectfully submitted, doesn’t go to that extent of mathematical scrutiny, and leaving the reservations to transgenders open-ended, i.e., to provide “all kinds of reservations”, only complicates the interpretation, whose ill-effects are replicated in the Madras High Court judgment.
Substantive Equality to Gender Minorities by the Madras High Court Order
In its concise yet profound 18-page judgment, the Single-judge Madras High judgment in Rakshika Raj v. State of Tamil Nadu demonstrated a commendable pragmatic approach to the issue of transgender reservations in conjunction with the larger issue of OBC reservations and vertical-horizontal divide. G.O Ms No.28 was issued by the Backward Classes, Most Backward Classes & Minorities Welfare (BCC) Department, State of Tamil Nadu, in 2015, on the basis of the recommendation issued by the Tamil Nadu Backward Classes Commission, which included Transgenders of certain categories into the “Most Backward Classes” (MBC) category. The principal justification alleged by the State of Tamil Nadu for introducing such reservation was, emanating directly from the NALSA judgment, which had obligated every state to provide, through its broadly worded language, “all kinds of reservations”. Initially, the state included and allowed these transgender communities to claim under the existing 20% reservations to Most Backward classes and denotified communities. Subsequently, in 2017, another G.O Ms No. 90 was issued, as per which third genders belonging to SC and ST were considered “as a part” of that community category. This exercise of clubbing the third gender with either men or women of the SC or ST castes under the garb of vertical reservation has relegated their gender-based self-identity protection and, as the High Court rightly points out, undermined the NALSA judgment, which identified the third gender as a separate identity. To elaborate this further, if the petitioner chooses to assert her identity as a transgender person, she has to forego the constitutional protections she has as a Scheduled Caste person. Therefore, the High Court holds the G.O. manifestly arbitrary. To solve this self-defeating ratio of the NALSA judgment, the High Court adopts a purposive interpretation of the judgment by clarifying that any reservation provided to the transgender will not be effective unless the intersection of these identities, viz., the gender and caste inequities, i.e., horizontal and vertical reservations are addressed. Putting it more emphatically clearer, the High Court notes explicitly that:
The implementation of the Judgment passed by the Hon'ble Supreme Court in NALSA has not been done properly. As declared by the Hon'ble Supreme Court in NALSA, transgender is a third-gender identity, and they are entitled to reservation. Therefore, it is a gender identity and only horizontal reservation can be granted to give effect to the directions issued by the Hon'ble Supreme Court.
By linking what the NALSA judgment had meant by the inclusion in SEBCs, the Madras High Court notes that if a particular gender identity is given horizontal reservation, it follows that the transgender community, being then a socially and educationally backward community, discriminated on the basis of gender identity, should also be entitled to similar reservation (horizontal, but not vertical).
Blurring the line of distinction in NALSA v. UOI
If the Madras High Court had not provided this interpretation, the NALSA ruling, in its substance and practical application, would have been self-defeating. In NALSA, the Centre and the State Governments were directed to take steps to treat third genders as “socially and educationally backward classes” and extend “all kinds” of reservation in cases of admission to educational institutions. By using such open-ended and all-encompassing SEBC reservation as the tool, the NALSA ruling has blurred the line of distinction and the interplay between horizontal and vertical reservations, which has numerous practical difficulties that are clearly replicated and thankfully clarified by the Madras High Court. Firstly, mandating a specific inclusion of gender minorities into the SEBC category has relegated the autonomous status of “gender” to being subjected to compulsory adherence to community certification. This comes as a blow to the transgenders competing in the open category who would be turned a blind eye. The perfect solution lies in horizontal reservation to transgenders as a separate third gender, akin to that of women reservations, which cuts across vertical communities, be it SEBCs or even extending to open categories. This is exactly what was done by the Madras High Court, which concluded the issue by ordering the Tamil Nadu government to provide horizontal gender-based reservations to transgenders. In the absence of such purposive interpretation by the High Court, the reasoning in NALSA would have resulted in absurd conclusions by even opening the floodgates for women, who constitute the largest share of horizontal reservations, to be provided with vertical reservations, thereby completely disrupting the delicate fine line of distinction between horizontal and vertical reservations.
To further concretize the conferment of horizontal reservations over vertical, an inference may be drawn to the clarification petition filed by the Union of India following the obligation placed in NALSA to ascertain whether the inclusion of transgenders into the SEBC lists would have to undergo scrutiny of data by the National Commission of Backward Classes. While the same is pending to date, another clarification petition was filed by a transgender activist in 2023, which the Apex Court refused to entertain, giving the petitioner the liberty to file a separate substantive petition for relief. If the Court had ruled that such vertical reservations must be backed by sufficient data on backwardness, that would have placed an additional burden and further kept the transgenders away from enjoying the fruits of the NALSA judgment. On the other hand, if the Court had upheld the inherent powers of the Union and States to Suo-moto provide reservations, then such conferment is akin to and possible only via Horizontal reservation, the best example being the existing women or PWD reservations.
Moreover, placing all transgenders as a single homogenous community within the OBC or MBC or SEBC list would come at a significant disadvantage to the SC and ST trans persons, who face much more discrimination and structural barriers based on their caste or tribal identity. This niche area of reservation law was rightly identified by the Madras High Court at Para 11 by highlighting that even the trans category as a whole is heterogeneous, with the Dalit subcategory facing much more discrimination and prejudice compared to an upper-caste Trans person (by comparing to the women reservations provided horizontally).
Conclusion
“Some affirmative action” in NALSA must be purposively read to mean horizontal reservations by recognizing the distinct identity of the third gender, which fulfils the right to equality under the broader equality code of Articles 14 to 16. The Madras High Court adopts such a pragmatic and purposive interpretation by providing a definite path for the other states, who would also inevitably, following the NALSA mandate, come up with affirmative action policies for third genders. This Madras High Court precedent, therefore, provides an effective and pragmatic precedent to the forthcoming litigation, if any, which was laid open by the Supreme Court’s order in the 2023 clarification petition.
Post-Script
While this piece was about to be published, the Calcutta High Court passed an order on 18th June, directing the state of West Bengal to provide 1% reservation for all transgender persons in public employment in the State, in accordance with the NALSA guidelines. This, therefore, depicts that, in future, numerous states are yet to come up with transgender reservations, relying heavily and even solely on the NALSA verdict. And it is herein that the Madras High Court’s ruling must be taken as the authoritative precedent to ensure that the NALSA verdict is in substance implemented.